James Castagnera: A plagiarism case that the media largely overlooked

[Mr. Castagnera, a Philadelphia journalist and attorney, is the Associate Provost at Rider University and author of the weekly newspaper column ìAttorney at Large.]

Back at the beginning of the summer I published a column in this space entitled “Who Done It? Creative Artists Wrangle Over Ownership.” Among my examples was the lawsuit between Dan Brown, author of the all-time bestselling novel, “The DaVinci Code,” and his publisher, Random House, on the one hand, and writer Lewis Perdue on the other. I called Perdue, “The plaintiff in that courtroom outing… who alleged that Brown had pirated parts of two Perdue novels, 1983’s ‘The DaVinci Legacy,” and 2000’s ‘Daughter of God.’”

To my surprise, given this newspaper’s limited circulation, Lewis Perdue promptly contacted me. I had underestimated the power of the Internet. The California-based novelist operates a Google program that picks up his name on the worldwide web. As soon as this newspaper posted my column on its website, Google passed Perdue a ‘gotcha.’

Perdue’s June 1st email message says, “It is probably worth noting that Random House sued ME and not the other way around as stated in your recent piece. Given the way that money speaks in the legal system, I would never have been stupid enough to sue them. I’ve got shallow, modest, middle class financial pockets (or HAD before this whole litigation hell began) and Random House has the Bertelsmann billions behind them.”

After reading this missive, I quickly donned my hair shirt and knee pads and penned an apology. “Sorry if I screwed up,” I replied and I meant it. Perdue was magnanimous. “Thanks for the quick response,” he retorted. “And no apology necessary. The Random House PR spin machine has done a remarkable job of making sure their twisted version of things is widely known… you did not ‘screw up’ by any sense of the word.”

Perdue, who at age 57 boasts an extraordinary resume that includes 20 fiction and non-fiction books and a long list of entrepreneurial achievements to boot, attached the pdf file for an article which one month later appeared as a major feature story in the July issue of “Vanity Fair” magazine. The piece was penned by a former “Newsweek” writer named Seth Mnookin, to whom Perdue reached out in 2003. Mnookin dashed off a 384-word item in the June 9, 2003, issue under the header, “A Stolen ‘DaVinci’ --- Or Just Weirdness?” He says in V.F. three years later, “That, I thought, would pretty much be that.”

But the case was just too compelling to die such a quiet death. In 2004 two of three authors of “Holy Blood, Holy Grail” sued Brown in a London court. As noted in my column, they lost to no one’s great surprise, since the ‘facts’ in their non-fiction book were fair game for Brown’s background research. “But,” writes Mnookin in V.F., “Brown didn’t emerge unscathed from his London trial. He had submitted a 69-page witness statement in which he made a number of bizarre assertions, chief among them that, despite all indications to the contrary, ‘Holy Blood, Holy Grail’ had been one of the less important research texts Brown had consulted.” Mnookin began paying closer attention to Perdue’s persistent email salvos. “The more I looked, the more some of what Perdue’s emails (and blog entries) claimed appeared worth pursuing.”

Among Mnookin’s revelations in V.P. is an expert-witness report by Director John Olsson of Britain’s Forensic Linguistics Institute. The report, which was not allowed into evidence by the federal judge who decided Brown and Random House v. Perdue, states flat out, “This is the most blatant example of in-your-face plagiarism I’ve ever seen.”

Let’s assume Olsson is correct. In my line of work --- higher education --- if Brown were a tenured faculty member, he’d probably be forced to resign from the faculty. Although some famous academic authors, such as the late historian Stephen Ambrose, manage to shrug off accusations of plagiarism, academia is typically harsh in its handling of word thieves. A couple of years ago, the president of Central Connecticut State University was forced to retire for cribbing materials for a guest column in the ‘Hartford Courant’… just a wee column like this one, not a novel!

Unfortunately, federal copyright law is a lot less stringent than academic honesty codes. The expression, not the idea, is protected from poaching. So, if Shakespeare had walked the streets of New York’s West Side in 1961, he couldn’t have done a thing about the appropriation of his plot in ‘Romeo and Juliet,’ when Leonard Bernstein, Stephen Sondheim and Arthur Laurents morphed it into “West Side Story.”

Some lawyers would like to see that change. Earlier this year Arthur Miller, the Harvard law prof/TV personality, published a piece in which he calls for greater protection of an author’s plots and characters. Sadly for Lewis Perdue, this may be an idea whose time has not yet come.